House of Commons - Northern Ireland Affairs

Select Committee on Northern Ireland Affairs Third Report

Annex A Legal Background to the Inquests

1. The obligation to protect the right to life under ECHR Article 2[158] includes a procedural obligation to conduct some form of effective official investigation when individuals have been killed as a result of the use of force.[159] The essential purpose of the investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in the cases involving state agents or bodies, to ensure their accountability for death occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances, but it has been the general approach of the authorities in the UK to meet this procedural obligation by conducting inquests.

2. The conduct of inquests in Northern Ireland is governed by the Coroners Act (Northern Ireland) 1959 (the 1959 Act) and the Coroners Practice and Procedures Rules (Northern Ireland) 1963 (the 1963 Rules). These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the coroner, who then has the power to hold an inquest, with or without a jury. The purpose of the inquest is to establish, with the assistance of the evidence of witnesses, post mortem and medical reports and forensic examinations, who the deceased was and how, when and where he died. The Coroners Service in Northern Ireland is headed by a High Court Judge. The coroner decides how widely the inquiry should range to establish the facts relevant to the circumstances of the death and responsibility for it and the inquiry may range more widely than the verdict or findings. Where the circumstances of a death investigated or being investigated by a coroner appear to disclose that a criminal offence may have been committed, the coroner is required to submit a report to the Director of Public Prosecutions.[160]

3. A number of inquests into contentious deaths occurring during the Troubles have been the subject of significant judgments by the European Court of Human Rights. The seminal decision of the European Court of Human Rights is Jordan et al v UK (2001),[161] where the Court found that the inquest regime fell short of the requirements of ECHR Article 2.[162] As a result, the court concluded that there had been a violation of the procedural obligation imposed by ECHR Article 2. In response to the judgment, the UK presented a package of proposals to the Committee of Ministers of the Council of Europe[163] setting out the practicable steps that it would take to implement the judgment to ensure that future investigations complied with ECHR Article 2.

4. As a result of domestic and European litigation and the instigation of a major review by Government,[164] the inquest system in Northern Ireland has been substantially remodelled in the last five years. In its Interim Resolution of February 2005,[165] the Committee of Ministers closed its examination of several aspects of the UK's package of measures relating to inquests.[166] Nevertheless, The Committee of Ministers in its second Interim Resolution of June 2007 urged the Government to implement all outstanding general and individual measures and take all necessary investigative steps without further delay in order to achieve concrete and visible progress in complying with the Court's judgment.[167] The Committee also decided to pursue the examination of the execution of the 2001 judgments until it has satisfied itself that all necessary individual measures have been taken to erase the consequences of the violations found for the individual applicants in those cases.

5. The Government was subsequently challenged in the domestic courts following the introduction of the Human Rights Act 1998 in an attempt to compel it to conduct an effective investigation into a number of historic deaths caused by police and/or security forces.[168] Declarations were sought that the Government's continuing failure to provide an Article 2 compliant investigation was unlawful and in breach of s.6 of the Human Rights Act 1998 and ECHR Article 2. The decision of the House of Lords however made clear that the Human Rights Act 1998 is not retrospective. Thus, domestic rights created by the Human Rights Act which are available to individuals against specific public authorities cannot be applied retrospectively.[169] The Human Rights Act 1998 does not therefore apply to unlawful killings which took place before the coming into effect of the Act on 2 October 2000. The obligation to hold an investigation is an obligation triggered by the occurrence of a violent death. If the death itself is not within the reach of the Act because it occurred before the Act came into force, nor is the procedural obligation to investigate which, the Lords held, is necessarily consequential on the death. This does not, however, displace the obligations under ECHR Article 2, which continue to bind the UK under international law.

6. In two recent cases (heard together in 2007) concerning inquests into deaths in Northern Ireland which occurred in the 1990s,[170] the House of Lords was asked to consider two further questions: (a) what findings or verdict the inquest jury was allowed to return under the 1959 Act and the 1963 Rules; and (b) the extent of the Chief Constable's duty of disclosure under the 1959 Act. The Court found that an inquest jury in Northern Ireland may not return a verdict of unlawful or lawful killing (unlike inquest juries in England or Wales). However, nothing in the 1959 Act or the 1963 Rules prevents a jury finding facts directly relevant to the cause of death which may point very strongly towards a conclusion that criminal liability exists or does not exist. The Court also held that s.8 of the 1959 Act requires the PSNI to furnish to a coroner (to whom notice under s.8 is given) such information as it then has or is thereafter able to obtain (subject to any relevant privilege or public interest immunity claim) concerning the finding of the body or concerning the death, noting that "[i]t would so plainly frustrate the public interest in a full and effective investigation if the police were legally entitled, after giving the initial s.8 notice, to withhold relevant and perhaps crucial information coming to their notice thereafter." A number of inquests[171] which were abandoned in the early 1990s have now been re-opened or re-commenced by the Senior Coroner in Northern Ireland in light of the House of Lords decision in Jordan.

Jane Gordon

Specialist Adviser

158 Read in conjunction with the State's general duty under article 1 to "secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention" Back

159 McCann v UK (1995) EHRR 97. Back

160 Justice (Northern Ireland) Act 2002 s.35(3) Back

161 The proceedings before the European Court of Human Rights in this case were conducted simultaneously with proceedings in the cases of Kelly and Others v UK (No. 30054/96); McKerr v UK (No. 28883/95) and Shanaghan v UK (No. 37715/97). Back

162 On a number of grounds including (i) the non-disclosure of witness statements prejudiced the ability of the deceased's family to participate in the inquest; (ii) the PII certificates had the effect of preventing the inquest examining matters relevant to the outstanding issues in the case; (iii) the police officers who shot the deceased could not be compelled to attend the inquest; and (iv) the inquest procedure did not allow for any verdict or findings which might play an effective role in securing a prosecution in respect of any criminal offence. Back

163 Under article 46(2) of the Convention, the Committee of Ministers has responsibility for supervising execution of the judgment of the court. Back

164 Death Certification and Investigation in England, Wales and Northern Ireland - The Report of a Fundamental Review 2003 (Cm 5831) and Death Certification and the Investigation of Deaths by Coroners - Third Report of the Shipman Inquiry, 2003 (Cm 5854). Back

165 Interim Resolution ResDH(2005)20. Back

166 Including the role of the inquest procedure in securing a prosecution in respect of any criminal offence; the scope of examination of inquests; the compellability of witnesses at inquests; the disclosure of witness statements prior to the appearance of a witness at the inquest and legal aid for the representation of the victim's family. Back

167 Interim Resolution ResDH(2007)73. Back